02 May 2016

Racism in the UK Bar

One of my favorite UK legal website, Legal Cheek, has a post directing legal watchers to a video interview of England's first black female High Court Judge. Legal Cheek goes on to say:
Dame Linda Dobbs has exposed shameful incidents of racism and sexism at the bar, particularly from her own clerks, in a revealing interview for the First 100 Years project — an ambitious video history which aims to highlight and celebrate the achievements of female lawyers in a profession long dominated by men.
A link to the video interview can also be found on the Legal Cheek website.

30 April 2016

Selecting Judges


On Friday in my common law course at Münster University, we discussed the process of selecting judges in both England and the United States. When I mentioned the process for selecting U.S. federal judges, I noted that it has become somewhat political over the past decades, using the recent death of Justice Scalia and the Senate's refusal to allow President Obama to fill that vacancy as an example of just how politicized the process has become. On cue, the Marshall Project has just released statistics concerning how many other vacancies there are in the federal court system:
The ninth seat on the Supreme Court has been vacant for two months.But Antonin Scalia’s chair is not the only empty one in the vast federal judiciary, where several judgeships have remained unfilled for 30 months or more. Around the country, there are 84 of these vacancies, largely as a result of the Senate’s historically low rate of confirming President Barack Obama’s nominees. And since the beginning of last year, the number of unfilled seats and pending nominations have been steadily rising.
The rest of the article is worth a read.

28 April 2016

Going Around the Senate

The death of Justice Antonin Scalia has left a vacancy on the United State Supreme Court, which must be filled using the process set forth in the United States Constitution. As most students who have taken one of my classes should know, this process calls for the President to nominate a replacement and the Senate to vote on whether that person should take the vacant seat. This classic example of checks and balances between the branches of federal government seems to set up a situation where a court vacancy cannot be filled without the Senate playing along. In fact, the Constitution says just that when it gives the Senate the power to confirm the President's nominee.

So what happens when the Senate refuses to play along? Up until early this year, the Senate has never absolutely refused to engage in the confirmation process. With only eight months until the next President is selected, leaders of the Senate have said that President Obama's nominee for the vacancy will not be considered by the Senate, and it should be up to the newly elected President to fill to vacancy. While this move is unprecedented, it probably is constitutional. Some, however, have suggested that the President might be able to simply skip the Senate and fill the vacancy, claiming that the Senate has waived its right to consent by not even engaging in the confirmation process. The blog Constitution Daily takes on this argument in a very interesting and worthwhile post.

25 April 2016

Separation of Powers

A recent U.S. Supreme Court case is the subject of a Noah Feldman's column over at Bloomberg News, and it is a must read for students interested in how the Court deals with separation of powers issues. The case involved whether Congress could amend a law in order to impact litigation pending before the courts. At the heart of the matter is whether by doing so Congress is interfering with the power of the judiciary.

22 April 2016

Natural Born Citizen Reloaded


Back in January I wrote about the controversy over whether Texas Senator Ted Cruz is eligible to be President. The issue centers around the meaning of the phrase "natural born citizen," which according to Article II of the U.S. Constitution is what one must be in order to qualify to be President. At least three lawsuits have been filed seeking to get the court to clarify the meaning of this phrase, and as the blog Constitution Daily recently reported, all have failed. As the blog post points out:
Legislative attorney Jack Maskell, writing for the Congressional Research Service in 2011, found that “the weight of more recent federal cases, as well as the majority of scholarship on the subject, also indicates that the term ‘natural born citizen’ would most likely include, as well as native born citizens, those born abroad to U.S. citizen-parents, at least one of whom had previously resided in the United States, or those born abroad to one U.S. citizen parent who, prior to the birth, had met the requirements of federal law for physical presence in the country.”
Anyone interested in learning more about the arguments concerning this phrase should really give Maskell's memo a quick read.

21 April 2016

Going Alone

One aspect of American law that I rarely discuss in class but should, is the idea that one may represent themselves in court. In legal English this is called Pro Se. While the 6th Amendment has been interpreted by the U.S. Supreme Court to guarantee access to a lawyer in criminal cases where the defendant is facing jail time, no similar guarantee exists for individuals who find themselves as part of a civil case. Recent numbers are a bit hard to find, but a 2005 New Hampshire study showed that in a majority of lower court cases in New Hampshire at least one of the parties was representing themselves and a 2004 California study found that 4.3 million people were self-represented in court.

To aid people in this situation, a new website has emerged, complete with a video game that teaches self-litigants the dos and don'ts of self-representation. It's worth look for anyone interested in learning more about who courts operate in the United States.

11 April 2016

Directly Electing the Senate

Students of American Constitutional Law know that members of the United States Senate were originally selected by the individual state legislatures. In class, I usually present this selection system as part of a compromise between large and small states. However, over at the blog Constitution Daily a slightly different take on this is offered:
"At the Constitutional Convention in 1787, the Founders were guided by, among other powerful ideas, the fear of the potentially tyrannical, harmful powers of a democratic majority. The proposal that United States Senators should be elected by state legislatures, rather than democratic majorities, was inspired by this fear. . . ."
To understand why the U.S. Senate was originally select by state legislatures and why this changed with the passage of the 17th Amendment, you cannot go wrong reading the rest of the blog post.

28 January 2016

Judicial Elections Back in the News

Two recent news items caught my attention as they show the difficulty states have with keeping their elected judges independent. In an en banc decision the U.S. Court of Appeals for the Ninth Circuit upheld an Arizona law that regulates the fundraising activities of judges. According to the Arizona Courthouse News Service:
Saying free-speech rights cannot outweigh the need to preserve judicial integrity, the en banc Ninth Circuit on Wednesday upheld an Arizona law banning judges from soliciting donations or stumping for colleagues. The 21-page lead opinion affirms five provisions in Arizona judicial code, which restrict judicial candidates from in-person solicitation or endorsing and campaigning for other candidates publicly, under the First Amendment.
The goal here is to keep judges out of the normal give and take political campaigning process in order to keep them independent.

In Wisconsin court watchers are concerned that the upcoming Wisconsin Supreme Court race will be overly partisan. This illustrates yet another difficulty with judicial elections. Can judges be said to be truly independent when they run on a partisan platform? 

18 January 2016

Lifetime Appointments

The Washington Post's blog "The Fix" recently had a post informing its readers that the average age of the U.S. Supreme is nearing its record high. The post has some interesting tidbits:
  • The average when Justices retire is around 78
  • Three Justices are older than 78
  • The average age of the Court at the moment is 69
This is good opportunity to remind students that judges in the U.S. federal court system are appointed for life, whereas judges in England have a mandatory retirement age. The majority of states in the United States also require their judges to retire after reaching a certain age. 

Making Courts More Transparent

Whether high court hearings should be televised has been an ongoing topic on this blog (see here, here and here). In the United States, at least at the federal level, the Supreme Court has rejected calls to televise its hearings, although the audio version of the hearings are made available after the fact. In the UK, the Supreme Court has taken transparency one step further by releasing video of its hearings after the fact. And apparently these videocasts are becoming increasingly popular. To get a better understanding of the debate over cameras in the courtroom, I suggest taking a quick glance at the Debatepedia page on the topic.

14 January 2016

Natural Born Citizen and the Presidency

The natural born citizen question is currently front and center in the Republican primary contest for President of the United States. Students in my U.S. Constitutional Law course will know that a requirement to be President is being a "natural born citizen" of the United States. As I said in class, clearly this disqualifies someone who became a naturalized American citizen, for instance Arnold Schwarzenegger. But what about an American born overseas to American parents? Are they natural born citizen? Or must the person be born in the United States? The issues is being discussed (again) in the United States because Texas Senator Ted Cruz, who is running for President, was born in Canada to an American mother and Cuban father. He has his American citizenship through his mother, of course, but does being born in Canada disqualify him from running for the Presidency? Donald Trump thinks so. So do some legal scholars. The National Constitution Center's blog "Constitution Daily" has more.